Opinion
NO. 01-17-00828-CR NO. 01-17-00829-CR
02-05-2019
ALFREDO CAMPOS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court Harris County, Texas
Trial Court Case Nos. 1530466 & 1530467
MEMORANDUM OPINION
Appellant, Alfredo Campos, pleaded guilty to two offenses of sexual assault of a child and punishment was tried to a jury. In accordance with the jury's assessment and recommendations, the trial court sentenced appellant to confinement for eight years in the first offense and for ten years in the second, and the trial court suspended appellant's sentence in the second offense and placed him on community supervision for ten years. In his sole issue, appellant contends that his counsel provided ineffective assistance during the punishment phase of trial.
Trial court case number 1530466; appellate cause number 01-17-00828-CR.
Trial court case number 1530467; appellate cause number 01-17-00829-CR.
We affirm.
Background
A Harris County Grand Jury issued true bills of indictment, alleging that appellant, on or about November 11, 2015, "unlawfully, intentionally and knowingly cause[d] the sexual organ of E.V. [the complainant], a person younger than seventeen years of age, to contact the sexual organ of [appellant]" and "cause[d] the mouth of [the complainant] . . . to contact the sexual organ of [appellant]." Appellant pleaded guilty to a jury.
At the punishment hearing, the complainant testified that, during the 2015-2016 school year, she was sixteen years old, a junior at Cypress Ridge High School ("CRHS"), and a student in appellant's math class. She testified that appellant was a very good teacher and was very popular and highly interactive with the students. Several students, including the complainant, regularly attended his after-school and lunch-period tutorials. Appellant talked with the students about "everyday things," including his personal life, and he "hung outside of school" with male students. Appellant took an interest in his female students, including complimenting them when they wore dresses and squeezing their shoulders.
The complainant further testified that, early in the school year, she was experiencing problems at home, and she discussed her concerns with appellant. In September, during a parent-teacher night at school, appellant encouraged her to contact him on social media. Initially, she sent appellant messages asking for help with her schoolwork, and he asked her about her day. Late one night in September, while she was at a friend's house after a football game, appellant sent her a message: "If I was with you right now, I would cuddle you and I would hold you tight and I would kiss you." The complainant testified that, after she responded with surprise, appellant "messaged back: Sorry, if you want it to be completely platonic, I can do that." Thereafter, appellant began sitting closely to her during her tutorials and frequently touched her. He asked the complainant to "hang out with him" and asked for her address. The complainant complied because "all of her other friends loved him and hung out with him," and she "didn't want to be the only one who wasn't cool with the cool teacher."
On one occasion in early October, appellant picked up the complainant from her house and took her to a restaurant for dinner. On another occasion, appellant kissed her at school. One evening in October, appellant picked up the complainant from her house and brought her to Bear Creek Park. At the park, appellant asked the complainant to get into the back seat of his car with him to watch a movie on his tablet. While they were watching a movie, appellant exposed himself and encouraged her to touch him. Subsequently, on a Saturday night while appellant's wife was out of town, appellant picked up the complainant and again drove her to Bear Creek Park, where he talked with her about his marital problems and feeling depressed and suicidal. The complainant considered appellant to be a really close friend, and she "didn't want to lose somebody" in whom she had confided so much. She felt that, because he had entrusted her with such personal matters, she was "the only one to help him." She testified that, while at the park, appellant put his penis in her mouth and engaged in sexual intercourse with her.
The complainant further testified: "I know it wasn't just me." Another student, V.W., was often in appellant's classroom and would "walk out the door with him." She noted that V.W. sat on appellant's lap at school, that "a lot of people saw it," and that there were "plenty of rumors about [appellant] being creepy towards girls because of the touching that he did on all of us throughout class."
Former CRHS student R.G. testified that appellant was her sophomore geometry teacher, and she confided in him about problems at home. By the end of her sophomore year, appellant told her that he "loved [her] as his own daughter." During her junior year, on her eighteenth birthday, appellant gave R.G. his phone and social media contacts for her to contact him outside of school. Thereafter, the two stayed in touch during school and after hours, and they met off campus several times. On one occasion, appellant took her to dinner and a movie. He told her that he wanted to keep their relationship private because he "only went out with his senior students," and she was his only junior student.
R.G. further testified that, during her senior year, appellant gave her prolonged hugs and kissed her forehead and hand, both while in school and off campus. Appellant told her that he was having a relationship with V.W., which R.G. understood to be a sexual relationship, and R.G. saw appellant and V.W. acting affectionately toward one another. One evening after R.G. graduated, appellant took her to Bear Creek Park, where they watched a movie on his phone. Appellant told her that he had broken up with V.W., and he kissed and touched R.G. When she refused his advances, appellant "wouldn't let [her] go" and encouraged her to get into the back seat of his car with him. When she continued to refuse, appellant dropped R.G. off at a friend's house and never spoke to her again.
R.G. later learned that appellant was the subject of a local news story, stating that he had been charged with having sexually assaulted a child. R.G. posted her reaction to the story to social media, hoping that her posts might help others. During direct examination by the State, she testified:
Q. . . . . So, you make a post on, you said, your social media page?During cross-examination, the trial court admitted into evidence R.G.'s social media posting. During redirect, R.G. read the statement to the jury.
A. Uh-huh.
Q. And what do you talk about in that post?
A. Just I feel like I connected the dots with everything. I don't feel like we were—I don't feel like this was anything random. I feel like—I feel like there was manipulation, involved everything, like the entire—just everything, like his relationship with his students, especially with [V.W.], me and [the complainant].
CRHS Assistant Principal Kyle Johnson testified that, on November 2, 2016, the school received a call from the parent of a student, stating that she had learned that, during the previous school year, appellant had engaged in an inappropriate relationship with the complainant. Johnson testified that he was assigned to examine the school surveillance cameras, to see if they had captured anything to substantiate the tip. As discussed in detail below, Johnson testified, during cross-examination by defense counsel, that appellant appeared on the surveillance video leaving his classroom with a student "at around 5:00 PM and no one else was in the building at that time on those cameras."
CRHS Principal Stephanie Meshell testified that, in 2015, the complainant was a student in appellant's class. Meshell noted that, during the previous school year, a student had reported that appellant was allowing students to sit on his lap during class, but the school was unable to substantiate it. She testified that some of the students she had interviewed had reported that appellant was "touchy feely" with the students, meaning that he played with their hair, rubbed their shoulders, and gave them prolonged hugs, and that he had shown students sexually inappropriate videos. When she spoke with appellant, he admitted that he had touched female students on the shoulders and hair, admitted that he had shared private messages and pictures of a sexual nature with students on social media, and admitted that he had sent a picture of himself in his "boxer shorts" to the complainant. He further admitted that the complainant sat next to him at his desk and visited him outside of her regular class period. Meshell noted that some students had after-school tutorials with appellant; however, these would be over before 4:30 to 5:00 p.m.
Cypress Fairbanks Independent School District Police Department Detective S. Hewett testified that she interviewed the complainant in November 2016. The complainant stated that appellant had told her that he would commit suicide if she told anyone about their relationship. She showed Hewett screenshots of social media and text messages that she had exchanged with appellant, which the trial court admitted into evidence and Hewett read to the jury. In one exchange, appellant stated to the complainant: "I'm sorry. I just really hate myself for falling in love with you and not being able to make this work." In another message, appellant asked the complainant to accompany him on a camping trip. Hewett noted that the complainant had expressed concern that appellant might have had an inappropriate relationship with another student as well. During Hewett's interview of appellant, the audiotape of which was admitted into evidence, appellant admitted that, during the fall of 2015, he had engaged in oral sex and sexual intercourse with the complainant at Bear Creek Park.
Appellant testified about the genesis of his relationship with the complainant. He noted that the complainant was 16 years old at the time and that he was 28. Initially, the complainant needed help with her schoolwork. Later, they started communicating through social media, became friends, and started spending time together outside of school hours. He testified that he was "in love with" her. He admitted that he picked her up from her house and drove her to Bear Creek Park a "few times," where he engaged in oral sex and sexual intercourse with her. He expressed remorse and explained that he was undergoing health issues at the time and was deeply depressed. He admitted that he and V.W. "were really close," but denied having a sexual relationship with her. He asserted that R.G. was "like [his] sister" and denied having made any advances toward her.
Defense counsel also presented several members of appellant's family, neighbors, and former students, who each testified on appellant's behalf. V.W. testified that she considered appellant to be a close friend; that he "never made any moves" on her; and that they did not have an intimate relationship. Another former student, A.S., testified that appellant always adjusted his schedule to provide students with tutorial assistance.
At the close of the punishment hearing, the trial court sentenced appellant to confinement for eight years in the first offense and placed him on community supervision for ten years in the second. Appellant did not file a motion for new trial.
Ineffective Assistance
In his sole issue, appellant argues that his trial counsel rendered ineffective assistance during the punishment phase of trial because he introduced harmful evidence of "extraneous offenses." Specifically, appellant complains that his counsel elicited testimony from Johnson about the content of the school surveillance video and introduced R.G.'s social media posting containing her statement and a news article with his mugshot.
Standard of Review and Principles of Law
The United States Constitution and the Texas Constitution guarantee an accused the right to assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; see also TEX. CODE CRIM. PROC. ANN. art. 1.051. This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984); Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). To prevail on his claim of ineffective assistance of counsel, appellant must prove (1) that his trial counsel's performance fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
Under the first prong of Strickland, in reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that counsel's performance fell within the wide range of reasonable professional assistance and were motivated by sound trial strategy. 466 U.S. at 688-89, 104 S. Ct. at 2065; Lopez, 343 S.W.3d at 142 ("[A]ppellant must prove, by a preponderance of the evidence, that trial counsel's performance fell below an objective standard of reasonableness under the prevailing professional norms."). To defeat this presumption, any allegation of ineffectiveness must be firmly grounded in the record so that the record affirmatively shows the alleged ineffectiveness. Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017). Generally, counsel should be given an opportunity to explain his actions before being found ineffective. Id. In most cases, direct appeal is an inadequate vehicle for raising an ineffective-assistance claim because the record is undeveloped and cannot adequately reflect the motives behind trial counsel's actions. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). In the face of a silent record, we cannot know trial counsel's strategy, so we will not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
Under the second prong of Strickland, in reviewing whether there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different, "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694, 104 S. Ct. at 2068. With respect to claims of ineffective assistance during the punishment phase, appellant must show a reasonable probability that the jury's assessment of punishment would have been less severe in the absence of counsel's deficient performance. Bazan v. State, 403 S.W.3d 8, 13 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd). It is not sufficient to show that counsel's errors had some conceivable effect on the outcome of the punishment assessed; rather, the likelihood of a different result must be "substantial." Id.
Appellant has the burden to establish both prongs by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Appellant's "failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong." Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
Discussion
Appellant first asserts that his trial counsel was ineffective because he elicited testimony from Johnson that "in the 10 days leading up to the investigation," appellant was seen on school surveillance video "leaving his classroom after school hours in the company of a student," at a time when "no one else was in the building." Specifically, appellant complains of the following colloquy between defense counsel and Johnson:
Q. Okay. And those security cameras, do you ever see any students that are on [appellant's] lot [sic]?
A. No, sir.
Q. All right. Did you see anything that was odd?
A. There was one occurrence that did happen on the surveillance. Most of our students leave campus at a specific time. We let out our school around 2:40 and then we have late buses, typically, throughout the week where our students are provided transportation off campus, and those leave at 4:20. There was an instance in those ten days that I was reviewing where a student did leave [appellant's] room, accompanied by [appellant], at
around 5:00 PM and no one else was in the building at that time on those cameras.Appellant asserts that the State had not questioned Johnson about appellant staying after school with any additional students, and thus such testimony "brought further harmful statements before the jury."
Appellant further complains that his trial counsel was ineffective because he introduced R.G.'s Facebook posting, which is comprised of a lengthy commentary by R.G. and a news article containing appellant's mugshot and the heading: "Alfredo Campos, 30, is accused of having an inappropriate relationship with a student." Specifically, he complains about the portions of R.G.'s commentary in which she stated: "[I]t frightens me so much to rea[d] everything that happened between him and this girl (who[m] I know and will not name because he did the exact same thing to try to lure me)"; "he manipulated me into thinking it was nothing more th[a]n that and I believed him"; "It wasn't until the end of my senior year when things started to progress intensely"; and "[a]t that time moment, he actually confessed to me that he has sexual relations with the girl . . . after he started to try to kiss but was so in shock that I don't even think I had a reaction toward it when it happened." Appellant asserts that "[t]here is nothing helpful for the defense in this exhibit and it is frankly perplexing why defense counsel even offered it into evidence." It "shows [a]ppellant's mugshot as part of a new story of a relationship with a student and a lengthy diatribe that is entirely hearsay."
We first note that appellant did not move for a new trial and that the record is silent as to trial counsel's strategy, if any, with respect to the complained-of testimony and evidence. A motion for new trial would have provided the trial court with an opportunity to hold a hearing on counsel's performance and to develop a record for appeal. Again, in order for an appellate court to find on direct appeal that counsel was ineffective, counsel's deficiency must be affirmatively demonstrated in the trial record. See Lopez, 343 S.W.3d at 142. When, as here, the record is silent as to counsel's reasons for his conduct, finding counsel ineffective would call for speculation by the appellate court. Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd). We cannot speculate beyond the record provided; rather, a reviewing court must presume that the actions were taken as part of a strategic plan for representing the client. See Bone v. State, 77 S.W.3d 828, 833-35 (Tex. Crim. App. 2002); Broussard v. State, 68 S.W.3d 197, 199-200 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) ("The Court of Criminal Appeals has repeatedly held that without a sufficient record, an appellant cannot overcome this presumption, and we cannot conclude counsel was ineffective."). "It is not sufficient that the appellant show, with the benefit of hindsight, that his counsel's actions or omissions during trial were merely of questionable competence." Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007); Crocker v. State, 441 S.W.3d 306, 313 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd). We decline to conclude that counsel's conduct was so outrageous that no competent attorney would have engaged in it or that appellant has rebutted the presumption that counsel's actions were part of some sound trial strategy. See Goodspeed, 187 S.W.3d at 392.
Even were we to conclude that trial counsel's performance fell below an objective standard of reasonableness, appellant cannot establish that there is a reasonable probability that the result of the proceeding would have been different, but for the complained-of testimony and evidence. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; see also Williams, 301 S.W.3d at 687 (holding that failure to make required showing of either deficient performance or sufficient prejudice defeats claim of ineffective assistance).
Appellant pleaded guilty in this case to two second-degree-felony offenses, each having a punishment range of confinement for two to twenty years, and a fine not to exceed $10,000. He was sentenced to confinement for eight years in the first offense and to community supervision for ten years in the second, to be served concurrently, and no fine.
The record shows that Johnson testified, in response to defense counsel's inquiry about seeing anything "odd," that appellant appeared on the school surveillance video leaving his classroom with "a student" "at around 5:00 PM." We first note that Johnson did not testify that the student was female. In addition, Meshell testified that appellant's after-school tutorials sometimes lasted until 4:30 to 5:00 p.m. And, A.S. testified that appellant always adjusted his schedule to provide students with tutorial assistance. Further, appellant, in his audiotape statement, explained that he eventually stopped scheduling after-school tutorials because he had so many students coming in that it was taking additional time to finish. Thus, Johnson's testimony on this point is not probative of whether appellant was continuing to engage in a pattern of inappropriate conduct with female students. We conclude that appellant has not established a reasonable probability that the jury's assessment of punishment would have been less severe in the absence of Johnson's testimony elicited by trial counsel. Cf. Bazan, 403 S.W.3d at 13.
With respect to R.G.'s social media posting, the record shows that the State first raised the posting during its direct examination of R.G. and questioned her about its contents. Defense counsel, during cross-examination, then introduced the posting into evidence. During redirect, at the State's behest, R.G. read the statement to the jury. However, the jury had already heard R.G. testify in detail as to each of the specific matters that appellant complains were raised by her statement. And, defense counsel vigorously cross-examined her on these points.
Specifically, R.G. testified about her relationship with appellant; that she confided in him about her problems at home; that he told her that he "loved [her] as his own daughter"; that he corresponded with her on social media outside of school; that they met off campus several times; that appellant took her to dinner and a movie; that he wanted to keep their relationship private because he "only went out with his senior students" and she was his only junior student; that appellant gave her prolonged hugs and kissed her forehead and hand, both while in school and off campus; and that appellant took her to Bear Creek Park, where they watched a movie on his phone in his car and he made sexual advances toward her. When "the same evidence is introduced from another source, without objection, the defendant is not in position to complain on appeal." Mitchell v. State, 68 S.W.3d 640, 643 (Tex. Crim. App. 2002) (holding that appellant failed to affirmatively show that he was prejudiced by counsel's performance); see also Baldridge v. State, No. 14-10-01173-CR, 2012 WL 1655785, at *6 (Tex. App.—Houston [14th Dist.] May 10, 2012, no pet.) (mem. op., not designated for publication) (holding that second prong of Strickland not met because same evidence of extraneous acts otherwise admitted before sentencing).
Appellant further complains of the portion of R.G.'s post containing his mugshot and the news article heading: "Alfredo Campos, 30, is accused of having an inappropriate relationship with a student." The record shows, however, that the evidence pertains to the instant offense and complainant in this case, and they were introduced during the punishment phase of trial—after appellant had already pleaded guilty to having an inappropriate relationship with the complainant, a student. Appellant does not explain how he was harmed by the jury seeing what it already knew.
We conclude that appellant has not established a reasonable probability that the jury's assessment of punishment would have been less severe in the absence of his trial counsel introducing R.G.'s social media posting into evidence. Cf. Bazan, 403 S.W.3d at 13.
In sum, we hold that appellant has not shown that, but for the complained-of representation by counsel, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Accordingly, we overrule appellant's sole issue.
Conclusion
We affirm the trial court's judgment.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Goodman and Countiss. Do not publish. See TEX. R. APP. P. 47.2(b).